People v. Ehlebracht.
2020 COA 132. No. 18CA0224. Criminal Law—Sexually Violent Predator—Sex Offender Lifetime Supervision Act—Sentencing—Probation—Double Jeopardy.
September 3, 2020
Defendant, who was 29, met the 14-year-old victim on a social media application. He took her to his apartment, gave her alcohol, and sexually assaulted her. Defendant pleaded guilty to first degree assault and sexual assault on a child without the use of force. The plea agreement stipulated that defendant would receive a 20-year prison sentence, followed by five years of parole, for the assault conviction; and a 10-years-to-life probation sentence for the sexual assault on a child conviction, to be served consecutively to the prison sentence but concurrently with the parole component. At the sentencing hearing, the court sentenced defendant in accordance with the plea agreement and designated him a sexually violent predator (SVP).
On appeal, defendant challenged his SVP designation. The Court of Appeals first addressed whether Allman v. People, 2019 CO 78, which held that a court may not sentence a defendant to both prison and probation in a multicount case under the general probation statutes, made defendant’s consecutive sentences to both prison and probation illegal. Here, the district court sentenced defendant to probation pursuant to the Sex Offender Lifetime Supervision Act (SOLSA). The sentencing scheme applicable to sex offenders under SOLSA differs from the general probation statutes, so Allman’s reasoning for prohibiting both prison and probation sentences in a single case doesn’t apply to sentences imposed under SOLSA. Accordingly, defendant’s consecutive prison and probation sentences were authorized by statute and not illegal.
Defendant also contended that the district court failed to make specific factual findings to justify its conclusion that he established the relationship with the victim primarily for sexual victimization; instead, the court erroneously relied on defendant’s two prior convictions for sex offenses involving children. Here, the trial court relied on the results of the SVP Assessment Screening Instrument (SVPASI), in which the evaluator found that defendant established a relationship with the victim for the purpose of sexual victimization. Further, the court’s technically erroneous description of defendant’s prior convictions didn’t undermine its conclusion that he established the relationship with the victim primarily for sexual victimization. Thus, the trial court did not err.
Defendant further argued that his sentences violated his right to be free from double jeopardy by imposing the sex offender, crimes against a child, and special advocate surcharges after the sentencing hearing. Because defendant’s sentence at the hearing didn’t include these mandatory surcharges, it was illegal when first imposed and subject to correction at any time under Crim. P. 35(a). Therefore, the court’s subsequent addition of these surcharges didn’t violate defendant’s double jeopardy rights. However, the statutory provisions imposing these surcharges allows the court to waive them if it finds that the offender is indigent or financially unable to pay all or a part of the surcharge. Here, the district court imposed the surcharges without giving defendant an opportunity to prove that he falls within one or more of the exemptions.
The orders designating defendant an SVP and assessing the statutory surcharges were affirmed. The case was remanded to afford defendant an opportunity to prove that he is entitled to a waiver of one or more of the surcharges.
Criminal Law Sexually Violent Predator Sex Offender Lifetime Supervision Act Sentencing Probation Double Jeopardy